Consideration
89 Century Legend submitted that the evidence showed that by August 2017, Mr and Mrs Ripani were no longer misled by the depiction of the opening in the render because Ms Hart had explained where the doors were in meetings on 26 May 2017 and 9 June 2017 with reference to the floor plans (the Options A/B, B and C plans). Century Legend submitted that at the meeting on 26 May 2017, "[Ms Hart] told [Mr and Mrs Ripani] about the three openings on the western façade and made marks in red pen on the floor plan to show this" and Ms Hart "showed [Mr and Mrs Ripani] there was a division of four panels creating the central opening that were 1-1.2m in width, and that they were moveable to create an opening around 4m in width." Century Legend submitted that Ms Hart again discussed the western façade with Mr and Mrs Ripani on 9 June 2017 and she told them about the glazing panels and the sliding and stacking doors.
90 Ms Hart's evidence about the meetings was given largely by reference to the plans. After being asked about, and giving her general recollection of, the meetings on 26 May 2017 and 9 June 2017, which was limited, Ms Hart was taken to the plans which she said she had at the meetings. Ms Hart proceeded to give evidence by reference to the plans and markings on them. Mr and Mrs Ripani disputed Ms Hart's evidence that all of the plans were at the meetings and that she wrote on the plans. I find on the balance of probabilities that the Option A/B and B plans and the Option C plan were at the meetings on 26 May 2017 and 9 June 2017 respectively and that Ms Hart wrote on the plans at the meetings.
91 As set out above in paragraphs 57-61, after being shown the plans, Ms Hart was asked three times to explain what she actually said to Mr and Mrs Ripani at the meeting on 26 May 2017. Her initial evidence was to explain, by reference to the marks on the plans, that there was to be "a point of access" between the dining room and the barbeque area, the top panel was "fixed" and "[y]ou then have an opening where the panels have been removed" and then, south of that, "there's panels removed. It's an opening." The second time that Ms Hart was asked to explain what she actually said, Ms Hart instead spoke in conclusory terms using expressions such as "I noted" and "we spoke about". On the third occasion, in cross-examination, Ms Hart's evidence was that she said the "façade is broken up into glazing panels of roughly a metre - just over a metre - 1.2 in width, and the - it has to be because of wind loadings against the western façade [and] the opening - the openings in the façade are a division of those two - or a sum of those window panels". Further, she "pointed to the - the main opening, which was centred on the fireplace, and counted and showed the number of panels that were being removed to create the opening on the fireplace and also the openings within the entertainment area".
92 Similarly, as set out above in paragraphs 73-77, after being asked about her general recollection of the meeting on 9 June 2017, which was limited, Ms Hart was shown the Option C plan. Ms Hart's evidence then was that Mr and Mrs Ripani requested "that single door opening" (i.e., at the northern end of the façade) be "double sliding panels", to which Ms Hart said "I would then need to move north … then they would have fixed panels, then we would come back to our opening, which is centred on the fireplace and the external dining - external seating area, which, again, is a division or the removal of four glazing panels."
93 There was no evidence given by Ms Hart that she told Mr and Mrs Ripani the actual width of the openings. It was not suggested to Mr and Mrs Ripani that Ms Hart told them the actual width of the openings. The only evidence from Ms Hart about the width of the openings was to be deduced from the information about the width of the panels (1-1.2m) and the removal of fixed panels from the façade.
94 Mr and Mrs Ripani denied that the Option A/B plan was discussed at the meeting on 26 May 2017, however, as mentioned above at paragraph 90, I have found on the balance of probabilities that the Option A/B plan was at the meeting and Ms Hart wrote on the plan. Nevertheless, Mr and Mrs Ripani denied that Ms Hart explained that there would be three openings along the western façade. They denied that they understood there were three door openings on the western façade.
95 Mr and Mrs Ripani submitted, and I accept, that the clearest evidence Ms Hart gave regarding the meeting on 26 May 2017 was her evidence, in cross-examination, when Ms Hart said that she told Mr and Mrs Ripani:
The facade is broken up into glazing panels of roughly a metre - just over a metre - 1.2 in width, and the - it has to be because of wind loading against the western façade. And the opening - the openings in the facade are a division of those - or are a sum of those window panels.
96 Century Legend relied on this evidence and the evidence that followed (see paragraph 61) to submit that Ms Hart "had explained to [Mr and Mrs Ripani] that the façade was broken into glazing panels roughly 1.2m wide and that the opening centred on the fireplace would have four glazing panels that were moveable and stackable to create an opening of up to three or four metres".
97 Ms Hart's evidence regarding what she said to Mr and Mrs Ripani at the meetings on 26 May 2017 and 9 June 2017 was vague and inconclusive in purporting to explain the openings on the western façade. If Ms Hart had sought to explain the truth about the openings on the western façade in the terms in which she gave evidence about what she said to Mr and Mrs Ripani at the meetings on 26 May 2017 and 9 June 2017, I consider that her explanation would not have been clear enough to convey to Mr and Mrs Ripani that an opening like the render was not going to be provided.
98 Century Legend submitted that Ms Hart's evidence was compelling and should be accepted because her evidence was detailed and convincing and she was an impressive witness who had no "skin in the game". Ms Hart was an honest and earnest witness who endeavoured to give evidence to the best of her recollection. Although she was only able to give pertinent evidence by reference to the plans, Ms Hart said, and I accept, that she had a general understanding and memory of the meetings, but seeing the plans helped her to clarify the memory. However, having observed all of the witnesses and in light of the totality of the evidence, my assessment is that, at the meetings on 26 May 2017 and 9 June 2017, Ms Hart did not explain the openings along the western façade to Mr and Mrs Ripani in clear terms or in terms by which they could have understood that apartment 1401 as constructed would not look like the render and that, instead of an opening with a flow through design like the render, the western façade would have three openings.
99 Century Legend submitted that Ms Hart's annotations on the floor plans - in particular the Options A/B and B floor plans annotated at the 26 May 2017 meeting and the Option C floor plan annotated at the 9 June 2017 meeting - corroborated her account of those meetings. Ms Hart's evidence was given largely by reference to the floor plans and she referred to the marks on the plans by way of explanation of the matters she raised at the meetings. Century Legend's submission that Ms Hart's annotations on the plans corroborates her account of those meetings is, therefore, circular.
100 Century Legend submitted that Ms Hart's evidence should be preferred to that of Mr and Mrs Ripani, who were self-interested and motivated to give evidence that supported their case. I found Mr and Mrs Ripani to be honest witnesses who gave evidence to the best of their recollection and I accept their evidence that they always understood that the opening would look like the render. That finding is supported by the evidence given by Mr Tran, who had no interest in the litigation.
101 As at the middle of June 2017, Mr Tran said that he believed the architects were on track to achieve an apartment like the image in the render. Mr Tran said he never stopped using the render to advertise the Victoriana. Mr Tran's evidence was that there was to be a single opening on the western façade and two sliding doors "[o]ne side - stack - stack - moves to the right-hand side, and the other one stack - stacks to the left", to create one opening.
102 Mr Tran said he could recall Ms Hart describing the way the sliding panels along the façade between the interior and exterior stacked. Mr Tran said that the discussion was that there would be two sliding doors that would meet in the centre and one set would slide to the right and one to the left, "and just slide, slide, slide to create that opening". Century Legend submitted that the Court should find that this conversation occurred at the meeting on 26 May 2017 as the marks on the Option B plan were consistent with the conversation happening then. Further, it submitted that Mr Tran's account was entirely consistent with Ms Hart explaining the opening between the dining room and the barbeque area on the terrace to Mr and Mrs Ripani. I do not regard Mr Tran's evidence as supportive of Century Legend's position or consistent with Ms Hart explaining the opening between the dining room and the barbeque area to Mr and Mrs Ripani. Mr Tran's evidence was that he always understood there would be one opening on the western façade. It was apparent from Mr Tran's evidence and the hand gestures that he used when giving his evidence that he meant and understood there was to be one opening with doors to the right and to the left that would "slide, slide, slide to create that opening".
103 Mr Tran gave evidence about his belief that there was to be "one opening" on more than one occasion. On each occasion, he said that that belief was based on what the architect, Ms Hart, had said at the meetings at which he and Mr and Mrs Ripani were present. Mr Tran was aware that the large free-span opening between the interior and exterior was a feature that attracted Mr and Mrs Ripani to the apartment: PJ [19]. Mr Tran told Mr and Mrs Ripani that apartment 1401 would be constructed as depicted in the render, with an expansive opening onto the terrace from the internal living areas: PJ [32]. Given Mr Tran's belief that apartment 1401 would look like the image on the render and that he was aware that the large free-span opening attracted Mr and Mrs Ripani to the apartment, it is reasonable to infer, and I find, that Mr Tran would have reacted in some way if Ms Hart had said in clear terms, or in terms he or Mr and Mrs Ripani could have understood, that the apartment as constructed would not look like the render and there would be three openings along the western façade. If those matters had been explained, I consider that Mr Tran would not have stood by and he would not have continued to hold the belief that there was to be one opening and that an apartment like that shown in the render was achievable. Mr Tran was not challenged about his belief or basis for his belief in cross-examination.
104 Century Legend submitted that Mr Hu's account is also consistent with Ms Hart's evidence insofar as he recalled that "the locations of the doors was discussed". Contrary to Century Legend's submissions, Mr Hu did not give evidence that he recalled that "the locations" (plural) of the "doors" (plural) were discussed at the meeting on 9 June 2017. Mr Hu's evidence was that the "door opening", "the location of the door" and "door location" was discussed.
105 My findings are strengthened by Ms Hart's admission that she could not tell Mr and Mrs Ripani that they would not get the openings in the render and that she was obliged to be less than frank on a number of occasions. This aspect of her evidence is significant, and it was as follows.
106 On 12 October 2016, Mr Perkins, senior architect at Rothelowman, raised concerns about the render in an email to Mr Shawn Lu, Marketing Manager at Century Legend, and Ms Kylie Xu, General Manager at Century Legend. The email, which was copied to Ms Hart, said:
Shawn,
Further to my email last night I would like to advise JD Group that several of the design changes (architecture and interiors) made by JD Group during the render stage are not in accordance with the Town Planning Permit or the current Design Development drawings. Also should a purchaser want exactly what is shown in the renders, for example, a flush inside to outside threshold, or uninterrupted floor to ceiling glazing it will not be possible due to the overall height restriction of the development and structural requirements. The changes made to the interior design of the standard apartment may be possible but will require further review, design development/documentation. There are also some safety issues with the design of the landscaping and pool areas that will need to be resolved after marketing.
Due to the extent of the changes, the misleading nature of the renders, and our inability to follow through on the render design I would advise JD Group to have the renders amended before marketing launch. Should this not be possible I would advise JD Group to be transparent with all potential purchasers in relation to the render content and to ensure that all "Artists Impressions" are accompanied with a suitably comprehensive disclaimer to cover the discrepancies/inaccuracies. This disclaimer should also be included in all marketing material and contract of sale documents.
Please don't hesitate [to] call should you wish to discuss the above.
…
[Emphasis added]
107 Ms Hart agreed that the large free-span opening between the interior and exterior was a feature that attracted Mr and Mrs Ripani to apartment 1401. At the time Mr and Mrs Ripani signed the Contract in April 2017, Ms Hart knew that the opening as shown on the render was not possible and that the render was misleading. Ms Hart agreed in cross-examination that this was potentially a very serious problem for Rothelowman because she knew Mr and Mrs Ripani were not going to get that.
108 Ms Hart agreed that when she was asked to work on apartment 1401 for Mr and Mrs Ripani, she knew that if she took a wrong step, Century Legend was likely to be very unhappy because they might lose a valuable sale and Rothelowman might be sued. Ms Hart agreed that being asked to work on apartment 1401 for Mr and Mrs Ripani was "a potential time bomb". Ms Hart agreed that the circumstances she was placed in, in dealing with Mr and Mrs Ripani, "obliged [her] to be less than frank on a number of occasions". Ms Hart agreed she would not have told Mr and Mrs Ripani the truth during meetings with Mr Hu or Mr Tran, because it might get back to Century Legend, and she could not say openly that they were not going to get what was shown in the render. Therefore, as Counsel for Mr and Mrs Ripani submitted, the meetings on 26 May 2017 and 9 June 2017 were not an occasion for Ms Hart to tell Mr and Mrs Ripani the opening they expected would not or could not be provided.
109 On 23 June 2017, Ms Hart sent an email to Mr Hu and others at Century Legend about the perimeter edge banding for each level of the Victoriana, which concluded by saying:
We feel it's extremely important that JD Group make purchasers aware of the actual internal/external transition and breaking up in glazing that will be achieved, as this is not accurately shown in the JD Group commission to marketing renders. It needs to be reiterated that marketing renders are an artist's impression only and not actual building images.
110 The email forwarded the email from Mr Perkins to Century Legend dated 12 October 2016 (referred to above in paragraph 106).
111 Mr Hu responded by email later that day noting that Century Legend had "put artist impression in all our renders and we have a disclaimer as well."
112 Century Legend submitted that Ms Hart's email to Century Legend on 23 June 2017 supported the fact that she told Mr and Mrs Ripani about the actual break up in the glazing panels. I disagree. Century Legend's response to the 23 June 2017 email may seem surprising, given the very clear warning from the architects on two separate occasions that the render was misleading, but it would have reinforced Ms Hart's belief about the sensitivity of the matter. That Ms Hart did not mention in her email of 23 June 2017 that she had made Mr and Mrs Ripani aware of the inaccuracy of the render may seem inexplicable. That Ms Hart did not on other occasions mention that she had already told Mr and Mrs Ripani about the width of the openings may also seem inexplicable. However, it is entirely explicable in light of Ms Hart's evidence that it was potentially a serious problem and she had to be careful. Ms Hart's email of 23 June 2017 was Ms Hart saying she knew there was a problem and she told Century Legend that ultimately it was their problem. There was no evidence that Ms Hart made a contemporaneous record of what she said she told Mr and Mrs Ripani regarding the inaccuracy of the render or the truth about the openings. Indeed, she was careful not to do that.
113 Century Legend submitted that the Court should conclude that by August 2017, having looked at the floor plans carefully and repeatedly in the period of April to August 2017, Mr and Mrs Ripani understood that there were multiple door openings on the façade. Century Legend submitted that Mr and Mrs Ripani saw the plans on the back of seeing the model of the Victoriana at the display suite, which shows the glazing break up across the façade. I accept that Mr and Mrs Ripani were given plans, which they printed and looked at. The floor plans that were shown and provided to Mr and Mrs Ripani were in plan view and were not elevation drawings. The sliding doors along the western façade were depicted by arrows reflecting their direction of travel in fine lines set against a background of herringbone chevrons (see image at Annexure G). There was no key provided on the plans to explain the lines or marks or what they were intended to depict.
114 The openings on the plans were not buildable. Ms Hart agreed that the sliding doors on the Option A plan could not be built because the centre opening was not wide enough and the sliding doors at the southern end of the centre opening and the southern opening moved into the same fixed panel, which would not work. Ms Hart agreed that this defect also applied to the Option A/B, B and C plans. Ms Hart did not pick up that the openings in the Option C plan were not buildable because there was no room available for a two door stacker and she agreed it was "confusing". This issue also applied to the Option E plan. In addition, if the façade had included two openings at the northern and southern ends as shown on the Option E plan, there would not have been enough room for the sliding doors for the centre opening. Finally, when the draftsperson prepared the Option E plan dated 6 February 2018 they misinterpreted changes to the doors marked up on the plan given to them as a series of four single doorways. Ms Hart said she did not notice this irregular change at the time.
115 These errors were not picked up in the design process, which involved architects, a principal designer, a draftsperson (or persons), and Ms Hart. It is therefore difficult to accept that Mr and Mrs Ripani might have noticed and understood how the openings worked by reference to the plans when none of the professionals dealing with the plans apparently did or had regard to them. Nobody ever remarked upon the fact that the represented openings could not in fact be built as depicted.
116 Century Legend further submitted that Ms Hart's evidence was credible and should be accepted because the evidence of two different witnesses - Ms Hart and Mr Hu - to the effect that on 15 September 2017 Mr and Mrs Ripani renewed their request for a wide opening, was consistent with Ms Hart's evidence that they were disappointed to learn the true position about the opening in the meetings with Ms Hart in May and June 2017.
117 Mr Hu's evidence about the meeting on 15 September 2017 was as follows:
…And also, they mentioned about the door opening to the - I think they mentioned - if this - got to be - look like the render image. I say, "I can't guarantee that, but we can put in the request saying 'open the door as wide as possible'." So that's why I put the notes along the door side.
118 When Mr Hu was asked to go through that evidence "in steps", he said that he could not "recall if it's Nina or Walter mentioned if the door can be - look like the render". Mr Hu was then asked what he said, to which he responded:
…I said I can't guarantee that. It's - really depends on the architect and the builder because we haven't got the builder at the time. We can't determine how wide it can be open.
119 Mr Hu was then asked what Mr and Mrs Ripani said, and he gave the following evidence:
And what did Walter and Nina say?‑‑‑I think they accept that is not under my control, so I think they stop asking.
Well ‑ ‑ ‑?‑‑‑They - they didn't say anything, I think.
They didn't say anything?‑‑‑Yes.
But you said something ‑ ‑ ‑?‑‑‑Instead of, they request a door to be as wide as possible.
Okay. Who asked that?‑‑‑I can't recall. Either of them, yes.
Requested for the door to be open as wide as possible?‑‑‑Correct.
Was anything said about the width of the door?‑‑‑No.
120 Mr Hu was later asked about a note he made on 15 September 2017 "Sliding door to be open as much as possible" and his evidence was:
Yes. And just how - just tell her Honour how that note came to be on there?‑‑‑Yes, as I said before, I think they mentioned about the render image, if the door can be open as such, as such wide. I said I can't guarantee that. I said we can put in the notes to the architect saying please design the door to be open as wide as possible.
121 In taking Mr Hu through his initial evidence "in steps", his evidence changed from Mr Hu initially saying that he said "we" (meaning JD Group) would put in a request for the doors to be "as wide as possible", to Mr and Mrs Ripani requesting "a door to be as wide as possible". He maintained the latter answer after he was shown his note "Sliding door to be open as much as possible", however, he was not asked if he wished to change his earlier evidence.
122 Century Legend's submission that Mr Hu gave evidence that during the meeting on 15 September 2017 Mr and Mrs Ripani requested to "open the door as wide as possible" does not accurately represent the entirety of Mr Hu's evidence. Century Legend submitted that, being disappointed to learn the true position after they entered into the Contract, it was "entirely explicable" that Mr and Mrs Ripani renewed their request for a wide opening. However, that is not the only explanation. Mr and Mrs Ripani had not been told the actual width of the door, even on Century Legend's case. In my assessment, having been attracted to apartment 1401 by the opening shown in the render, they had occasion to ask Century Legend's representative about the opening on the render when they met with him to discuss the interior design and customisation of the apartment at the meeting on 15 September 2017. Mr Hu's evidence was that he said he couldn't guarantee the opening would look like the render. Whether (as Mr Hu initially said) he then said "we can put in the request saying 'open the door as wide as possible'", or Mr and Mrs Ripani requested a wide opening, was explicable with Mr and Mrs Ripani having asked about the image in the render because it was what had attracted them to the apartment.
123 Ms Hart's evidence does not advance matters. Ms Hart gave evidence that on 15 September 2017 (after Mr Hu's meeting with Mr and Mrs Ripani) Mr Hu told Ms Hart that Mr and Mrs Ripani want the opening to the terrace to be as wide as possible. It must be borne in mind that Mr Hu and Ms Hart knew the true position.
124 Century Legend submitted that, consistently with her practice, Ms Hart made red pen-mark annotations on the Option E plan dated 15 September 2017 (with Mr Hu's writing in blue). Ms Hart also made notes in a Rothelowman notebook of that meeting with Mr Hu, in black pen, dated 15 September 2017, including by writing "sliding doors to open wide as poss to terrace". This was Ms Hart's evidence and note of what Mr Hu told her - it was not evidence or a note of a request that Mr and Mrs Ripani made directly to Ms Hart. Century Legend subsequently self-described this request as a "purchaser's request".
125 In addition to the meeting on 15 September 2017, Century Legend also referred to the following matters regarding the post-contractual request to make the door as wide as possible:
(a) On 21 September 2017, Ms Hart emailed Mr Hu stating "I have the following points noted from our discussion… Additional notes: … Sliding doors to terrace to be maximum openable width possible";
(b) On 2 October 2017, Ms Hart emailed Mr Hu, Kylie Xu and others and said "Following my meeting with Walter and Nina the following additional items have been requested:…19. Maximum width access to the terrace";
(c) In an email of 28 November 2017 to Ms Xu, Ms Hart said "With regards to the apartment terrace threshold transitions, yes purchasers for both 1401 and 1101 have expressed the expectation that there will be an even transition as per the marketing renders. Both parties have requested to maximise the width of opening to the terraces to take advantage of the interior/ exterior connection"; and
(d) The purchaser upgrade schedule dated 6 February 2018 referred to "Purchaser request: Maximize clear opening to balcony" along with the date "22.09.17".
126 The documents referred to above are Century Legend's self-described record of a "purchaser's request" or Ms Hart's record of the request as it was conveyed to her, bearing in mind that Century Legend and Ms Hart knew the true position. There were no documents prepared by Mr or Mrs Ripani recording the request or evidencing that they made the request.
127 The opening "request" was first recorded in writing at and following Mr Hu's meeting with Mr and Mrs Ripani on 15 September 2017. Given the ambiguity in Mr Hu's evidence leading up to the recording of the request, and for the reasons mentioned in paragraph 122, I do not accept Century Legend's submission that Mr and Mrs Ripani's evidence, that they did not know they were not getting the doors in the render, is a matter which cannot be reconciled with the post-contractual requests for a wide opening.
128 Century Legend submitted that "relatedly" it was apparent from the evidence of Mr Hu that one of the reasons for the meeting of 13 July 2018 was that Mr and Mrs Ripani were not happy about the width of the opening to the western façade. Century Legend submitted that there was no explanation for the meeting, other than that Mr and Mrs Ripani had been told previously about the true position of the doors, were still disappointed about it, and had requested the opening to be "as wide as possible".
129 On the contrary, I accept the submission on behalf of Mr and Mrs Ripani that the reason for the meeting on 13 July 2018 was that Mr and Mrs Ripani were not happy about the height of the doors on the western façade. On 4 May 2018, Mr Hu met with Mr and Mrs Ripani at their private residence. Mr Hu brought two documents with him - the document entitled "Purchaser Upgrade Premium Apartment 1401 VICTORIANA 20 Queens Road, Albert Park" (Purchaser Upgrade document) and an "Estimate Summary" prepared by WT Partnership, quantity surveyors (WTP Costings). The Purchaser Upgrade document was prepared by Rothelowman. The WTP Costings contained estimated costings for "[i]tems to be included as standard" and "[a]dditional items provided at extra cost to client". Mr Hu said the purpose of the meeting on 4 May 2018 was to discuss variations or upgrade options with Mr and Mrs Ripani and which of the upgrade options would be at Mr and Mrs Ripani's cost.
130 Mr Ripani said he noticed item 2.8 in the WTP Costings: "Maximum access to Terrace - Assume Renlita frameless glass doors including motorised operation, writing, to suit 12000 x 2550 opening size". Item 2.8 was under "Additional items provided at extra cost to client" and was costed at $43,760. Mr Ripani said he noticed item 2.8 was a 12 metre stackable door with a height of 2.5 metres. Mr Ripani said the aspect that concerned him was the height of the door. Mr Ripani said he asked why they were paying for this item and why it was not part of the construction of the apartment, and Mr Hu said he would have to check. Mr Hu said that when he saw this item he was surprised to see Mr and Mrs Ripani were getting a 12 metre opening. He said "Wow, you're getting 12 metres", but did not tell Mr and Mrs Ripani that he did not think an opening of that width was not possible.
131 After the meeting on 4 May 2018, Mr and Mrs Ripani met with Ms Hart on 22 June 2018. It is likely that the ceiling and door heights were discussed at the meeting because, on 22 June 2018, Ms Hart sent Mr and Mrs Ripani an email that referred to the meeting and attached a schematic section for the apartment that showed the height of the ceilings and the doors on the western façade.
132 Mr Ripani replied to Ms Hart's email on 25 June 2018 raising the concerns he had raised from "day one" about the ceiling heights. Given that the concern raised at the meeting on 4 May 2018 was actually about the doors, Mr Ripani's email can be taken to be about the height of the ceilings and doors. This was the first time Mr or Mrs Ripani complained about the doors in writing, and it was a complaint about the height of the doors. Ms Hart responded to Mr Ripani's email to suggest that he should speak to Mr Lu, as Mr Hu was on holidays.
133 Mr Ripani then sent an email to Mr Lu on 25 June 2018 which again raised his concerns about the ceiling heights. Mr Lu replied to ask for "a couple of days to check with the team and then come back to you later this week." On 13 July 2018, Mr and Mrs Ripani had a meeting with Mr Lu. In my assessment, the events leading up to this meeting, as set out above, show that the reason for the meeting on 13 July 2018 was for Mr Lu to come back to Mr and Mrs Ripani, who were not happy about the height of the ceilings and doors.
134 The initial trial judge found that the render represented to Mr and Mrs Ripani that apartment 1401 when constructed would accord with the render and include the flow through design. Further, that Mr and Mrs Ripani relied on the render to sign the Contract in April 2017: PJ [12], [14], [41], [92], [95], [97], [98]; FC [13], [213]. The large free span opening of the doors as depicted in the render was an important feature to Mr and Mrs Ripani and central to their decision-making to sign the Contract: PJ [17], [21]; FC [229].
135 Mrs Ripani said that, after the Contract was signed in April 2017, she wanted and was still expecting the "big opening" they were sold. Mrs Ripani thought that she was purchasing an apartment that would look like the render with a large retractable façade and an interior and exterior that was totally seamless. Mr and Mrs Ripani provided the bank guarantee in August 2017. However, they said that they would not have gone through with the purchase and would have walked away if Ms Hart had told them that they were not going to get an opening like the render and were instead going to get three openings on the western façade.
136 Having regard to all these matters, I find that Mr and Mrs Ripani continued to rely on the truth of the Representations when, having reached a state of satisfaction with the Option E plan, they provided the bank guarantee on 29 August 2017. I find that Mr and Mrs Ripani in fact relied on the Representations when they provided the bank guarantee on 29 August 2017 to communicate their acceptance that the Contract had become unconditional. I also find that Mr and Mrs Ripani would not have provided the bank guarantee if they understood that they were not going to get an opening like the render and were instead going to get three openings on the western façade.